JUDICIAL MISBEHAVIOUR AND INCAPACITY (PARLIAMENTARY COMMISSIONS) BILL 2012

i Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. ,

2012

Contents

Part 1--Preliminary

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

Object of this Act ............................................................................... 2

Guide to this Act ................................................................................ 3

Extension to external Territories ........................................................ 3

This Act binds the Crown .................................................................. 4

7 Definitions

.........................................................................................

Part 2--Establishment, functions and membership etc. of

Commissions

Guide to this Part ............................................................................... 6

9 Establishment

.....................................................................................

10 Functions

...........................................................................................

11 Powers

...............................................................................................

Commission has privileges and immunities of the Crown ................. 7

13 Membership

.......................................................................................

14 Appointment

of members .................................................................. 8

Vacancy in membership ..................................................................... 8

When a Commission ceases to exist .................................................. 9

Part 3--Investigations of Commissions

Division 1--General

Guide to this Division ...................................................................... 10

18 Decision

questions ....................................................................... 10

19 How

Commission

is informed ...................................................... 10

20 Natural

justice

..................................................................................

Division 2--Investigations

Subdivision A--Guide to this Division

Guide to this Division ...................................................................... 13

Subdivision B--Speed of investigations and openness of hearings

Speed of investigations .................................................................... 14

23 Openness

hearings ....................................................................... 14

Subdivision C--Powers in relation to investigations

24 Hearings

...........................................................................................

Power to summon witnesses, take evidence and obtain

documents or other things etc. ......................................................... 16

26 Additional

requirements for notices ................................................. 17

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

Arrest of witness failing to appear ................................................... 18

28 Search

warrants

................................................................................

29 Operating

electronic equipment ....................................................... 21

Expert assistance to operate electronic equipment ........................... 22

31 Securing

other

things

.......................................................................

Occupier entitled to observe execution of search warrant ............... 24

Occupier to provide constable with facilities and assistance ........... 25

Details of search warrant to be given to occupier, etc. .................... 25

Completing execution of a search warrant after temporary

cessation ........................................................................................... 25

Completing execution of search warrant stopped by court

order ................................................................................................. 26

Copies of seized things to be provided ............................................ 27

Receipts for seized documents or other things ................................. 27

Return of seized documents or other things ..................................... 28

Compensation for damage to electronic equipment ......................... 28

Powers of Commission in relation to documents or other

things ............................................................................................... 29

Disposal of documents or other things ............................................. 29

Compensation for acquisition of property ....................................... 30

Commission may direct that certain information not be

published etc. ................................................................................... 30

Subdivision D--Costs and expenses of Commonwealth judicial

officer and witnesses

Costs of legal representation for Commonwealth judicial

officer ............................................................................................... 31

Reimbursement of expenses of witnesses ........................................ 32

Division 3--Report

Guide to this Division ...................................................................... 33

48 Report

..............................................................................................

Division 4--Offences relating to investigations

Guide to this Division ...................................................................... 36

50 Unauthorised

presence at hearing .................................................... 36

Failure of witness to appear ............................................................. 36

Failure of witness to produce document or other thing .................... 37

Refusal to be sworn or to give evidence .......................................... 38

54 Self-incrimination

............................................................................

Acts or omissions on different days constitute separate

offences ............................................................................................ 39

56 False

misleading evidence ........................................................... 39

57 Injury

witness

..............................................................................

iii Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. ,

2012

Preventing witnesses from producing document or other

thing ................................................................................................. 40

Bribery of witness ............................................................................ 40

60 Fraud

witness

..............................................................................

61 Obstruction

a Commission .......................................................... 41

Failure to provide facilities and assistance ...................................... 42

63 Unauthorised

publication of material ............................................... 42

Division 5--Protections

Guide to this Division ...................................................................... 43

Protection of members, witnesses and lawyers ................................ 43

Protection in relation to contraventions of prohibitions ................... 44

Hearings and evidence of a Commission ......................................... 44

Part 4--Terms and conditions of membership

Guide to this Part ............................................................................. 45

69 Terms

and

conditions generally ....................................................... 45

70 Other

employment

...........................................................................

71 Remuneration

...................................................................................

72 Resignation

......................................................................................

73 Termination,

cessation, of appointment ....................................... 46

Disclosure of interests by members ................................................. 47

Part 5--Administrative provisions

Guide to this Part ............................................................................. 48

Staff of a Commission ..................................................................... 48

77 Consultants

......................................................................................

78 Counsel

assisting a Commission ...................................................... 49

Commission to be part of Department of House of

Representatives or Senate ................................................................ 49

Commission must prepare and keep statements of reasons

about search warrants ....................................................................... 50

Commission may give information, evidence, documents etc. ........ 50

Records of a Commission ................................................................ 51

Part 6--Miscellaneous

83 Regulations

......................................................................................

Part 1 Preliminary

Section 2

2 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No.

, 2012

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 and

2 and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Sections 3 to

A single day to be fixed by Proclamation.

However, if the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Object of this Act

(1) The object of this Act is to provide for a commission to be

established by the Houses of the Parliament to investigate, and

report to them on, alleged misbehaviour or incapacity of a

Commonwealth judicial officer, so they can be well-informed to

consider whether to pray for his or her removal under paragraph

72(ii) of the Constitution.

(2) To avoid doubt, subsection (1) does not imply that:

Preliminary Part 1

Section 4

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

(a) an Act is needed for such a commission to be established; or

(b) such a commission is the only means by which the Houses of

the Parliament can be well-informed to consider whether to

pray for the removal of a Commonwealth judicial officer

under paragraph 72(ii) of the Constitution.

4 Guide to this Act

Under this Act, the Houses of the Parliament may each pass a

resolution, in the same session, establishing a Commission to

investigate an allegation of misbehaviour or incapacity of a

Commonwealth judicial officer (that is, a High Court judge, a

judge of the Federal Court of Australia or the Family Court of

Australia, or a Federal Magistrate).

The Commission is to investigate the allegation, and report to the

Houses of the Parliament, on whether there is evidence that would

let the Houses of the Parliament conclude that the alleged

misbehaviour or incapacity is proved.

If the alleged misbehaviour or incapacity is proved, and both

Houses of the Parliament pray for the removal of the judicial

officer, the judicial officer may be removed by the

Governor-General in Council in accordance with paragraph 72(ii)

of the Constitution.

A Commission is established by force of, and in accordance with,

this Act, and the members of a Commission hold office on the

terms and conditions provided by this Act. This Act also

establishes the rules for an investigation by a Commission, and the

requirement for it to report on its investigation to the Houses of the

Parliament.

5 Extension to external Territories

This Act extends to every external Territory.

Part 1 Preliminary

Section 6

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6 This Act binds the Crown

(1) This Act binds the Crown in each of its capacities.

(2) This Act does not make the Crown liable to be prosecuted for an

offence.

7 Definitions

In this Act:

acquisition of property has the meaning given by section 43.

Australia, when used in a geographical sense, includes the external

Territories.

Australian law means a law (whether written or unwritten) of the

Commonwealth, a State or a Territory.

Commission means a Commission established by force of

section 9.

Commonwealth judicial officer means:

(a) a Justice of the High Court; or

(b) a judge or justice of a court created by the Parliament (other

than the Federal Magistrates Court); or

(c)

Federal

Magistrate.

constable has the same meaning as in the Crimes Act 1914.

conveyance has the meaning given by section 27.

damage, in relation to data, includes damage by erasure of data or

addition of other data.

dwelling house has the meaning given by section 27.

Federal Magistrate means a Federal Magistrate of the Federal

Magistrates Court.

incapacity has (other than in section 73) the same meaning as in

section 72 of the Constitution.

Note:

Incapacity has its ordinary meaning in section 73.

Preliminary Part 1

Section 7

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

just terms has the meaning given by section 43.

lawyer means a barrister, a solicitor, a barrister and solicitor, or a

legal practitioner, of the High Court or of the Supreme Court of a

State or Territory.

member means a member of a Commission, and includes a

presiding member.

misbehaviour has (other than in section 73) the same meaning as

in section 72 of the Constitution.

Note:

Misbehaviour has its ordinary meaning in section 73.

official inquiry has a meaning affected by section 19.

official investigation has a meaning affected by section 19.

parliamentary presiding officer means:

(a) the President of the Senate; or

(b) the Speaker of the House of Representatives.

premises includes the following:

(a) a structure, building, vessel, aircraft or vehicle;

(b) a place (whether or not enclosed or built on);

presiding member means a member of a Commission appointed as

the presiding member by force of subsection 14(3).

proved, in relation to misbehaviour or incapacity, has the same

meaning as in section 72 of the Constitution.

search warrant means a search warrant issued under subsection

28(1).

Part 2 Establishment, functions and membership etc. of Commissions

Section 8

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Part 2--Establishment, functions and membership

etc. of Commissions

8 Guide to this Part

The Houses of the Parliament may each pass a resolution, in the

same session, establishing a Commission to investigate an

allegation of misbehaviour or incapacity of a Commonwealth

judicial officer.

The Commission is to investigate the allegation, and report to the

Houses of the Parliament, on whether there is evidence that would

let the Houses of the Parliament conclude that the alleged

misbehaviour or incapacity is proved.

If the alleged misbehaviour or incapacity is proved, and both

Houses of the Parliament pray for the removal of the judicial

officer, the judicial officer may be removed by the

Governor-General in Council in accordance with paragraph 72(ii)

of the Constitution.

A Commission is to consist of 3 members, who are nominated by

the Prime Minister after consulting with the Leader of the

Opposition.

9 Establishment

(1) A Commission is established by force of this section if each House

of the Parliament passes, in the same session, a resolution that a

Commission be established by this Act to investigate a specified

allegation of misbehaviour or incapacity of a specified

Commonwealth judicial officer.

Note 1:

A separate Commission is established each time the Houses of the

Parliament pass a resolution in relation to a specified allegation.

Note 2:

A Commission might be established to investigate more than one

allegation of misbehaviour or incapacity of a specified

Establishment, functions and membership etc. of Commissions Part 2

Section 10

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

Commonwealth judicial officer (see paragraph 23(b) of the Acts

Interpretation Act 1901).

(2) To avoid doubt, such a Commission may be established on or after

this section commences to investigate and report in respect of

misbehaviour or incapacity that is alleged to have occurred, or

begun, before, on or after this section commences.

10 Functions

The functions of a Commission are:

(a) to investigate an allegation referred to in section 9; and

(b) to report to the Houses of the Parliament the Commission's

opinion of whether or not there is evidence that would let the

Houses of the Parliament conclude that the alleged

misbehaviour or incapacity is proved.

11 Powers

A Commission has power to do all things necessary or convenient

to be done for or in connection with the performance of its

functions.

12 Commission has privileges and immunities of the Crown

A Commission has the privileges and immunities of the Crown in

right of the Commonwealth.

13 Membership

(1) A Commission consists of 3 members appointed on the nomination

of the Prime Minister.

(2) Before nominating a member, the Prime Minister must consult

with the Leader of the Opposition in the House of Representatives.

(3) At least one member of each Commission must be:

(a) a former Commonwealth judicial officer; or

(b) a judge, or former judge, of the Supreme Court of a State or

Territory.

Part 2 Establishment, functions and membership etc. of Commissions

Section 14

8 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No.

, 2012

14 Appointment of members

(1) A member is appointed by force of this subsection if each House of

the Parliament passes, in the same session, a resolution to appoint

the member.

(2) A person must not be appointed if he or she is a Commonwealth

judicial officer.

(3) A member is by force of this subsection appointed as the presiding

member if:

(a) the Prime Minister nominates the member to be the presiding

member; and

(b) each House of the Parliament passes, in the same session, a

resolution to appoint the member as the presiding member.

(4) A member is appointed on a part-time basis.

15 Vacancy in membership

If at any time a Commission is not properly constituted in

accordance with the requirements of section 13 because one or

more members have ceased to be a member then, despite

section 13:

(a) the Commission continues in existence (even if there are no

remaining members); and

(b) the Commission consists of the remaining members (if any);

and

at that time, as if the Commission were properly constituted

in accordance with the requirements of section 13; and

(d) the Houses of the Parliament must, as soon as practicable

after that time, each pass a resolution to appoint replacement

members, in accordance with the requirements of sections 13

and 14.

Establishment, functions and membership etc. of Commissions Part 2

Section 16

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

16 When a Commission ceases to exist

(1) The parliamentary presiding officers may jointly determine, in

writing, that a Commission is to cease to exist if the officers are

satisfied that:

(a) the Commission's functions have been performed; or

(b) the person in relation to whom an allegation of misbehaviour

or incapacity is being investigated by the Commission has

ceased to be a Commonwealth judicial officer (due to

retirement, resignation, death or any other reason).

(2) The Commission ceases to exist at the time specified in the

determination.

(3) A determination made under subsection (1) is not a legislative

instrument.

Part 3 Investigations of Commissions

Division 1 General

Section 17

10 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No.

, 2012

Part 3--Investigations of Commissions

Division 1--General

17 Guide to this Division

This Division contains rules relating to how a Commission is to

conduct its investigations.

In particular, this Division provides the following:

(a)

a Commission decides a question in accordance

with the majority of members;

(b)

a Commission is not bound by the rules of

evidence;

(c)

a Commission must act in accordance with the

rules of natural justice.

18 Decision of questions

(1) A question for a Commission is decided in accordance with the

opinion of a majority of the members.

(2) If the members are not unanimous, each member's opinion on the

question must be recorded.

Note:

If the members are not unanimous, each member's opinion is included

in the report given under section 48.

19 How a Commission is informed

(1) A Commission is not bound by the rules of evidence and may be

informed on any matter in any manner it thinks fit.

Previous official inquiries and investigations

(2) In considering an allegation, a Commission must consider the

outcome of any previous official inquiry or official investigation

Investigations of Commissions Part 3

General Division 1

Section 20

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

into the allegation so far as the Commission thinks it necessary or

desirable to do so.

(3) The Commission is not (subject to subsection (4)) precluded by:

(a) any other Australian law; or

(b) any privileges of either House of the Parliament;

from obtaining access to the records of evidence given at, or

findings made as a result of, such an inquiry or investigation.

(4) Subsection (3) is not intended to limit or otherwise affect the

operation of section 16 of the Parliamentary Privileges Act 1987.

Official inquiries and investigations

(5) Without limiting the meaning of official inquiry, that expression

includes:

(a) a Royal Commission within the meaning of the Royal

Commissions Act 1902; and

(b) a Royal Commission of a State or a Territory; and

Territory.

(6) Without limiting the meaning of official investigation, that

expression includes:

(a) an investigation into a complaint about a Judge within the

meaning of the Federal Court of Australia Act 1976; and

(b) an investigation into a complaint about a Judge within the

meaning of the Family Law Act 1975; and

within the meaning of the Federal Magistrates Act 1999; and

(d) the consideration of a matter by the Director of Public

Prosecutions of the Commonwealth, a State or a Territory;

and

(e) an investigation by the Australian Federal Police.

20 Natural justice

(1) A Commission must act in accordance with the rules of natural

justice.

Part 3 Investigations of Commissions

Division 1 General

Section 20

12 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No.

, 2012

(2) Without limiting subsection (1), if an allegation of misbehaviour or

incapacity is being investigated by a Commission in relation to a

Commonwealth judicial officer:

(a) the Commission must:

(i) give the Commonwealth judicial officer particulars of

the allegation being investigated as soon as practicable;

and

(ii) offer the Commonwealth judicial officer a reasonable

opportunity to make an oral or written statement to the

Commission; and

(b) the Commission must offer the Commonwealth judicial

officer reasonable access to any documents or other things

(including documents, or other things, seized under a search

warrant) received by, produced before, delivered to, or

otherwise acquired by, the Commission for the purposes of

the investigation; and

appear at, a hearing of the Commission, or otherwise give

evidence to the Commission--the Commission must not

draw any inferences adverse to the Commonwealth judicial

officer from that fact; and

(d) before the Commission gives a report under subsection 48(1)

or (6), the Commission must:

(i) give the Commonwealth judicial officer a draft of the

report; and

(ii) give the Commonwealth judicial officer a reasonable

opportunity to give comments to the Commission on the

draft report; and

(iii) consider any timely comments that the Commonwealth

judicial officer makes to the Commission on the draft

report.

Investigations of Commissions Part 3

Investigations Division 2

Section 21

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

Division 2--Investigations

Subdivision A--Guide to this Division

21 Guide to this Division

This Division contains rules relating to a Commission's

investigation into an allegation of misbehaviour or incapacity of a

Commonwealth judicial officer.

A Commission must conduct its investigation as quickly as proper

consideration of the allegation permits. Generally, it must also hold

any hearings in public.

A Commission has various powers of investigation, such as the

power to do the following:

(a)

hold a hearing;

(b)

require a witness to appear at a hearing, and arrest

a person who fails to appear;

(c)

require the production of a document or other

thing;

(d)

issue search warrants.

The Commonwealth is liable for the reasonable costs of legal

representation for a Commonwealth judicial officer in relation to

whom an investigation is being conducted. Witnesses are entitled

to be reimbursed for their expenses.

Part 3 Investigations of Commissions

Division 2 Investigations

Section 22

14 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No.

, 2012

Subdivision B--Speed of investigations and openness of

hearings

22 Speed of investigations

A Commission must conduct its investigation as quickly as proper

consideration of the matters before the Commission permits.

23 Openness of hearings

(1) A Commission must hold its hearings in public, but may direct that

part or all of its hearings be held in private if it is satisfied that it is

desirable to do so:

(a) because it believes the interests of justice so require; or

(b) because it believes the confidential nature of any evidence or

matter so requires; or

Note:

For the power to hold a hearing, see section 24.

(2) In considering whether part or all of a hearing should be held in

private, the Commission must:

(a) take as the basis of its consideration the principle that it is

desirable that hearings should be held in public; but

(b) give due regard to any reasons given to the Commission why

the hearing should be held in private.

(3) Without limiting paragraph (2)(b), the Commission must have

regard to the effect of holding the hearing in public on the

following:

(a) the ability of the Commonwealth judicial officer to whom the

investigation relates to perform his or her duties as such an

officer;

(b) the independence of the judiciary;

(i) the judiciary; and

(ii) the Commonwealth judicial officer.

Investigations of Commissions Part 3

Investigations Division 2

Section 24

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

Subdivision C--Powers in relation to investigations

24 Hearings

Power to hold a hearing

(1) For the purposes of its investigation, a Commission may hold a

hearing at any place in Australia determined by the Commission.

Procedure at the hearing

(2) Subject to this Act, the procedure at the hearing is as the

Commission directs.

(3) The presiding member must preside at the hearing.

Attendance by relevant Commonwealth judicial officer

(4) The Commonwealth judicial officer in relation to whom an

allegation of misbehaviour or incapacity is being investigated by

the Commission may:

(a) attend and participate in the hearing; and

(b) be represented by a lawyer at the hearing.

Questioning of witness

(5) At the hearing:

(a) counsel assisting the Commission; and

(b) the Commonwealth judicial officer in relation to whom the

allegation is being investigated by the Commission; and

and

(d) anyone else authorised by the Commission;

may, so far as the Commission thinks appropriate, question a

witness on a matter the Commission thinks relevant to its

investigation.

(6) If a person who is a Commonwealth judicial officer or a former

Commonwealth judicial officer is questioned under subsection (5),

the person is not required to answer.

Part 3 Investigations of Commissions

Division 2 Investigations

Section 25

16 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No.

, 2012

Private hearing

(7) If the Commission holds all or part of a hearing in private, a person

must not be present at the hearing or part unless the person:

(a) is a member of the Commission; or

(b) is counsel assisting the Commission; or

allegation is being investigated by the Commission; or

(d) is a person whom the Commission has authorised to be

present; or

(e) is a lawyer representing someone described in paragraph (c)

or (d).

25 Power to summon witnesses, take evidence and obtain documents

or other things etc.

(1) A member may, by notice, require a person to do any of the

following:

(a) to appear at a hearing of the Commission, at a specified time

and place, to do either or both of the following:

(i)

give

evidence;

(ii) produce the documents or other things specified in the

notice;

(b) if the person is appearing as a witness at a hearing--to

produce a specified document or other thing to a specified

member of staff of the Commission at a specified time;

to a specified member of staff of the Commission at a

specified time and place.

Note 1:

For self-incrimination, see section 54.

Note 2:

For protections for those given a notice under this section, see

sections 65 and 66.

(2) The notice must:

(a) be in writing; and

(b) be given to the person; and

prescribed by the regulations.

Investigations of Commissions Part 3

Investigations Division 2

Section 26

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

Note:

Section 26 sets out additional requirements for notices.

Evidence on oath or affirmation

(3) A Commission may take evidence at a hearing on oath or

affirmation. For that purpose:

(a) a member may require a person appearing as a witness to

give evidence at the hearing to take an oath or make an

affirmation in a form approved in writing by the presiding

member; and

(b) a member, or a person authorised in writing by the presiding

member, may administer an oath or affirmation to a person

appearing as a witness at the hearing.

(4) A person is not entitled to give evidence to a Commission by a

statement that is not verified by oath or affirmation.

Exemption of Commonwealth judicial officer etc.

(5) Subsections (1), (3) and (4) do not apply to a person who is:

(a) a Commonwealth judicial officer; or

(b) a former Commonwealth judicial officer.

(6) To avoid doubt, despite subsection (5):

(a) a person who is a Commonwealth judicial officer or a former

Commonwealth judicial officer may elect to give evidence

after taking an oath or making an affirmation in a form

approved in writing by the presiding member; and

(b) a member, or a person authorised in writing by the presiding

member, may administer such an oath or affirmation to the

person.

26 Additional requirements for notices

(1) Before giving a notice under section 25, the member must be

satisfied that it is reasonable in all the circumstances to do so.

(2) A time specified in a notice given under section 25 must be at least

14 days after the day on which the person receives the notice.

Part 3 Investigations of Commissions

Division 2 Investigations

Section 27

18 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No.

, 2012

(3) A notice given under paragraph 25(1)(a) (requiring a person to

appear) must:

(a) state that a person giving evidence may have a lawyer

present; and

(b) set out the effect of the following provisions:

(i) section 27 (arrest of witness failing to appear);

(ii) section 51 (offence for failure of witness to appear);

(iii) section 52 (offence for failure of witness to produce

documents or other thing).

(4) A notice given under subparagraph 25(1)(a)(i) (requiring a person

to give evidence) must set out, so far as is reasonably practicable,

the general nature of the matters in relation to which the person is

to be questioned, unless the member giving the notice is satisfied

that, in the particular circumstances of the hearing to which the

notice relates, it would prejudice the effectiveness of the hearing to

do so.

Note:

A person who is a Commonwealth judicial officer or a former

Commonwealth judicial officer cannot be given a notice under

section 25 (see subsection 25(5)).

27 Arrest of witness failing to appear

(1)

If:

(a) a person is given a notice under section 25 requiring the

person to appear at a hearing of a Commission as a witness;

and

(b) the person fails to appear at the hearing in answer to the

notice;

the presiding member may, on proof by affidavit of the receipt of

the notice by the person, issue a warrant under this section for the

person's apprehension.

Note:

A person who is a Commonwealth judicial officer or a former

Commonwealth judicial officer cannot be given a notice under

section 25 (see subsection 25(5)).

(2) The warrant is to authorise:

(a) the apprehension of the witness; and

(b) the witness being brought before the Commission; and

Investigations of Commissions Part 3

Investigations Division 2

Section 28

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

he or she is released by order of the presiding member.

(3) The warrant may be executed by a constable.

(4) If the constable executing the warrant believes on reasonable

grounds that the witness is on any premises, the constable may

(subject to subsection (5)) enter the premises, using such force as is

necessary and reasonable in the circumstances, at any time of the

day or night, for the purposes of executing the warrant.

(5) The constable executing the warrant must not enter a dwelling

house under subsection (4) at any time between 9 pm on a day and

6 am on the following day unless the constable believes on

reasonable grounds that it would not be practicable to apprehend

the witness, either at the dwelling house or elsewhere, at another

time.

(6) In this Act:

conveyance includes a vessel, aircraft or vehicle.

dwelling house includes a conveyance, and a room in a hotel,

motel, boarding house or club, in which people ordinarily retire for

the night.

28 Search warrants

Power to issue search warrant

(1) A Commission, or a member authorised in writing by a

Commission, may issue a search warrant if:

(a) the Commission or member has reasonable grounds for

suspecting that there may be, at that time or within the next

24 hours, on or in any premises, one or more documents, or

other things, of a particular kind (documents or other things

of the relevant kind) connected with the matter the

Commission is investigating; and

(b) the Commission or member believes on reasonable grounds

that, if a notice were given requiring the production of the

documents or other things of the relevant kind, any of the

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20 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No.

, 2012

documents or things might be concealed, lost, mutilated or

destroyed.

Note:

The Commission must record the reasons for that suspicion and belief

(see section 80).

Effect of search warrant

(2) The search warrant is to authorise a constable, named in the

warrant, with such assistance as that constable thinks necessary and

if necessary by such force as is necessary and reasonable:

(a) to enter the premises; and

(b) to search the premises for documents or other things of the

relevant kind; and

found on or in premises and deliver them to the Commission.

Content of search warrant

(3) The search warrant must state:

(a) the purpose for which the warrant is issued, which must

include a reference to the matter the Commission is

investigating and with which the documents or other things

of the relevant kind are connected; and

(b) whether entry is authorised to be made at any time of the day

or night or during specified hours of the day or night; and

be seized; and

(d) the date, not more than 7 days after the date of issue of the

warrant, the warrant ceases to have effect; and

(e) the effect of section 33 (occupier to provide facilities and

assistance).

Extra effect of search warrant

(4) The search warrant also authorises the constable executing the

warrant to seize a document or other thing of another kind if:

(a) the constable finds it in the course of searching for

documents or other things of the relevant kind under the

warrant; and

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Section 29

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

(b) the constable believes on reasonable grounds that:

(i) the document or thing is connected with the matter the

Commission is investigating; and

(ii) it is necessary to seize the document or thing in order to

prevent its concealment, loss, mutilation or destruction.

Note:

A constable can also secure things under section 31.

No search of premises occupied by Commonwealth judicial officer

etc.

(5) This section does not apply to any premises occupied by a person

who is:

(a) a Commonwealth judicial officer; or

(b) a former Commonwealth judicial officer.

29 Operating electronic equipment

(1) A constable executing a search warrant in relation to premises

may:

(a) operate electronic equipment on the premises; and

(b) use a disk, tape or other storage device that:

(i) is on the premises; and

(ii) can be used with the equipment or is associated with it;

if the constable has reasonable grounds for suspecting that the

electronic equipment, disk, tape or other storage device is, or

contains material, connected with the matter the Commission is

investigating.

(2) The constable executing the search warrant may:

(a) seize the equipment and the disk, tape or other storage device

if the constable has reasonable grounds for suspecting that it

is, or contains material, connected with the matter the

Commission is investigating; and

(b) operate electronic equipment on the premises to put the

material in documentary form and remove the documents so

produced from the premises; and

material to a disk, tape or other storage device that:

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22 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No.

, 2012

(i) is brought to the premises for the exercise of the power;

(ii) is on the premises and the use of which for that purpose

has been agreed in writing by the occupier of the

premises;

and remove the disk, tape or other storage device from the

premises.

(3) The constable executing the search warrant may operate electronic

equipment as mentioned in subsection (1) or (2) only if the

constable believes on reasonable grounds that the operation of the

equipment can be carried out without damage to the equipment.

Note:

For compensation for damage to electronic equipment, see section 40.

(4) The constable executing the search warrant may seize equipment

or a disk, tape or other storage device as mentioned in

paragraph (2)(a) only if:

(a) it is not practicable to put the material in documentary form

as mentioned in paragraph (2)(b) or to transfer the evidential

material as mentioned in paragraph (2)(c); or

(b) possession of the equipment or the disk, tape or other storage

device by the occupier could constitute an offence against a

law of the Commonwealth.

30 Expert assistance to operate electronic equipment

(1) This section applies if a constable executing a search warrant in

relation to premises enters such premises to search for material

connected with the matter the Commission is investigating.

Securing equipment

(2) The constable may do whatever is necessary to secure any

electronic equipment that is on the premises if the constable

believes on reasonable grounds that:

(a) there is material connected with the matter the Commission is

investigating on the premises; and

(b) the material may be accessible by operating the electronic

equipment; and

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Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

(d) the material may be destroyed, altered or otherwise interfered

with if the constable does not take action under this

subsection.

The equipment may be secured by locking it up, placing a guard or

any other means.

(3) The constable must give notice to the occupier of the premises, or

another person who apparently represents the occupier, of:

(a) the constable's intention to secure the equipment; and

(b) the fact that the equipment may be secured for up to 24

hours.

Period equipment may be secured

(4) The equipment may be secured until the earlier of the following

happens:

(a) the 24-hour period ends;

(b) the equipment has been operated by the expert.

Note:

For compensation for damage to electronic equipment, see section 40.

Extensions

(5) The constable may apply to the Commission, or a member

authorised in writing by the Commission, for an extension of the

24-hour period if the constable believes on reasonable grounds that

the equipment needs to be secured for more than that period.

(6) Before making the application, the constable must give notice to

the occupier of the premises, or another person who apparently

represents the occupier, of the constable's intention to apply for an

extension. The occupier or other person is entitled to be heard in

relation to that application.

(7) The 24-hour period may be extended more than once.

31 Securing other things

(1) A constable who enters premises under a search warrant may

secure a thing for a period not exceeding 24 hours if:

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24 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No.

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(a) the thing is found in or on the premises in the course of

searching for documents or other things of the relevant kind

under the warrant; and

(b) the constable believes on reasonable grounds that the thing is:

(i) relevant to an indictable offence; or

(ii) evidential material (within the meaning of the Proceeds

of Crime Act 2002) or tainted property (within the

meaning of that Act); and

necessary to secure the thing in order to prevent it from being

concealed, lost, mutilated or destroyed before a warrant to

seize the thing is obtained.

(2) The constable may do whatever is necessary to secure the thing,

including lock it up, place a guard or secure the thing by any other

means.

Extensions

(3) If the constable believes on reasonable grounds that the thing needs

to be secured for more than 24 hours, the constable may apply to

the Commission, or a member authorised in writing by the

Commission, for an extension of that period.

(4) The constable must give notice to the occupier of the premises, or

another person who apparently represents the occupier, of his or

her intention to apply for an extension. The occupier or other

person is entitled to be heard in relation to that application.

(5) The 24-hour period may be extended more than once.

32 Occupier entitled to observe execution of search warrant

(1) The occupier of premises to which a search warrant relates, or

another person who apparently represents the occupier, is entitled

to observe the execution of the warrant if the occupier or other

person is present at the premises while the warrant is being

executed.

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Investigations Division 2

Section 33

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

(2) The right to observe the execution of the search warrant ceases if

the occupier or other person impedes that execution.

(3) This section does not prevent the execution of the search warrant in

2 or more areas of the premises at the same time.

33 Occupier to provide constable with facilities and assistance

The occupier of premises to which a search warrant relates, or

another person who apparently represents the occupier, must

provide the constable executing the warrant with all reasonable

facilities and assistance for the effective exercise of the constable's

powers.

Note:

A person who breaches this section might commit an offence (see

section 62).

34 Details of search warrant to be given to occupier, etc.

If:

(a) a search warrant in relation to premises is being executed;

and

(b)

either:

(i) if the premises are a vessel, aircraft or vehicle--a

person is present who is apparently in control of the

vessel, aircraft or vehicle; or

(ii) otherwise--the occupier of the premises, or a person

who apparently represents the occupier, is present at the

premises;

the constable executing the warrant must make available a copy of

the warrant, and identify himself or herself, to the occupier, person

who apparently represents the occupier, or person apparently in

control.

35 Completing execution of a search warrant after temporary

cessation

(1) This section applies if a constable who is executing a search

warrant in relation to premises temporarily ceases its execution and

leaves the premises.

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26 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No.

, 2012

(2) The constable may complete the execution of the search warrant if:

(a) the warrant is still in force; and

(b) the constable is absent from the premises:

(i) for not more than 1 hour; or

(ii) if there is an emergency situation--for not more than 12

hours or such longer period as is allowed by the

presiding member under subsection (5); or

(iii) for a longer period if the occupier of the premises

consents in writing.

Application for extension in emergency situation

(3) A constable may apply to the Commission, or a member authorised

in writing by the Commission, for an extension of the 12-hour

period mentioned in subparagraph (2)(b)(ii) if:

(a) there is an emergency situation; and

(b) the constable believes on reasonable grounds that the

constable will not be able to return to the premises within that

period.

(4) If it is practicable to do so, before making the application, the

constable must give notice to the occupier of the premises of his or

her intention to apply for an extension.

Extension in emergency situation

(5) The presiding member may extend the period during which the

constable may be away from the premises if:

(a) an application is made under subsection (3); and

(b) the presiding member is satisfied, by information on oath or

affirmation, that there are exceptional circumstances that

justify the extension; and

search warrant ceases to be in force.

36 Completing execution of search warrant stopped by court order

A constable may complete the execution of a search warrant that

has been stopped by an order of a court if:

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Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

(a) the order is later revoked or reversed on appeal; and

(b) the warrant is still in force when the order is revoked or

reversed.

37 Copies of seized things to be provided

(1) This section applies if:

(a) a search warrant is being executed in relation to premises;

and

(b) one or more of the following is seized from the premises:

(i) a document, film, computer file or other thing that can

be readily copied;

(ii) a storage device, the information in which can be

readily copied.

(2) The occupier of the premises, or another person who apparently

represents the occupier and who is present when the search warrant

is executed, may request the constable executing the warrant to

give a copy of the thing or the information to the occupier or other

person.

(3) The constable executing the search warrant must comply with the

request as soon as practicable after the seizure.

(4) However, the constable executing the warrant is not required to

comply with the request if possession of the thing or information

by the occupier or other person could constitute an offence against

a law of the Commonwealth.

38 Receipts for seized documents or other things

(1) The constable executing a search warrant must provide a receipt

for any document or other thing that is seized under the warrant.

(2) One receipt may cover 2 or more documents or other things seized.

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Section 39

28 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No.

, 2012

39 Return of seized documents or other things

(1) The Commission may retain any document or other thing that is

seized under a search warrant if it is reasonably necessary for the

Commission's investigation.

Return of seized things

(2) The Commission must return the document or thing to the person

from whom it was seized or, if that person is not the owner of the

document or thing, to the person who appears to the Commission

to be entitled to possession of it, at the earlier of the following:

(a) the earliest time it is not reasonably necessary for the

Commission to retain the document or thing for the

Commission's investigation;

(b) 60 days after the document or thing was seized.

40 Compensation for damage to electronic equipment

(1) This section applies if:

(a) as a result of electronic equipment being operated as

mentioned in this Division:

(i) damage is caused to the equipment; or

(ii) the data recorded on the equipment is damaged; or

(iii) programs associated with the use of the equipment, or

with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because:

(i) insufficient care was exercised in selecting the person

who was to operate the equipment; or

(ii) insufficient care was exercised by the person operating

the equipment.

Note:

For the definition of damage, see section 7.

(2) The Commonwealth must pay the owner of the equipment, or the

user of the data or programs, such reasonable compensation for the

damage or corruption as the Commonwealth and the owner or user

agree on.

Investigations of Commissions Part 3

Investigations Division 2

Section 41

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

(3) However, if the owner or user and the Commonwealth fail to

agree, the owner or user may institute proceedings in the Federal

Court of Australia or another court of competent jurisdiction for

such reasonable amount of compensation as the court determines.

(4) In determining the amount of compensation payable, regard is to

be had to whether the occupier of the premises, or the occupier's

employees or agents, if they were available at the time, provided

any appropriate warning or guidance on the operation of the

equipment.

41 Powers of Commission in relation to documents or other things

(1) A Commission, a member, or a person authorised in writing by the

presiding member, may:

(a) inspect any documents or other things produced before, or

delivered to, the Commission; and

(b) retain the documents or things as long as reasonably

necessary for the Commission's investigation; and

relevant to the Commission's investigation.

(2) If the retention of a document or other thing by the Commission

ceases to be reasonably necessary for the Commission's

investigation, the Commission must, if a person who appears to the

Commission to be entitled to the document or thing requests, cause

the document or thing to be delivered to that person.

(3) Subsection (2) does not limit subsection 39(2).

42 Disposal of documents or other things

(1) The presiding member of a Commission may dispose of a

document or other thing seized under this Division if:

(a) a member of staff of the Commission has taken reasonable

steps to return the document or thing to a person; and

(b)

either:

(i) the member of staff of the Commission has been unable

to locate the person; or

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30 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No.

, 2012

(ii) the person has refused to take possession of the

document or thing.

(2) The presiding member may dispose of the document or thing in

such manner as the presiding member thinks appropriate.

43 Compensation for acquisition of property

(1) If the operation of section 42 would result in an acquisition of

property from a person otherwise than on just terms, the

Commonwealth is liable to pay a reasonable amount of

compensation to the person.

(2) If the Commonwealth and the person do not agree on the amount

of the compensation, the person may institute proceedings in the

Federal Court of Australia or another court of competent

jurisdiction for the recovery from the Commonwealth of such

reasonable amount of compensation as the court determines.

(3) In this Act:

acquisition of property has the same meaning as in paragraph

51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the

Constitution.

44 Commission may direct that certain information not be published

etc.

Directions not to publish

(1) A Commission may direct in writing that any of the following not

be published:

(a) evidence given before the Commission;

(b) the contents of a document, or a description of a thing,

produced before or delivered to the Commission or seized

under a search warrant;

evidence before the Commission to be identified;

Investigations of Commissions Part 3

Investigations Division 2

Section 45

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

(d) the fact that any person has given or may be about to give

evidence at a hearing of the Commission.

(2) The Commission must give such a direction if not doing so might

prejudice:

(a) the safety of a person; or

(b) the fair trial of a person who has been or may be charged

with an offence against an Australian law.

When direction ceases to apply

(3)

If:

(a) a record (within the meaning of the Archives Act 1983)

contains any of the things referred to in paragraphs (1)(a) to

(d) of this section; and

(b) a direction has been given under subsection (1) not to publish

that thing; and

subsection 31(5) of the Archives Act 1983, as that subsection

applies because of a modification prescribed under subclause

9.6 of the Schedule to the Archives (Records of the

Parliament) Regulations;

then the direction ceases to apply in relation to that thing.

Subdivision D--Costs and expenses of Commonwealth judicial

officer and witnesses

45 Costs of legal representation for Commonwealth judicial officer

(1) The Commonwealth is liable to pay for the reasonable costs of

legal representation for the Commonwealth judicial officer in

relation to whom an allegation of misbehaviour or incapacity is

being investigated under this Act.

(2) No other person is liable under any Act of the Commonwealth to

pay for such costs.

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Division 2 Investigations

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32 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No.

, 2012

46 Reimbursement of expenses of witnesses

(1) The Commonwealth is liable to pay for the following amount of

expenses of a witness who is required to appear, or is appearing, at

a hearing of a Commission:

(a) the amount worked out under the regulations;

(b) if there are no regulations for that purpose, and the

Commission has determined an amount in writing in relation

to that particular witness--the amount determined by the

Commission.

(2) Subsection (1) does not apply in relation to the Commonwealth

judicial officer in relation to whom the allegation of misbehaviour

or incapacity is being investigated by the Commission.

(3) A determination made under paragraph (1)(b) is not a legislative

instrument.

Investigations of Commissions Part 3

Report Division 3

Section 47

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

Division 3--Report

47 Guide to this Division

A Commission gives its report into its investigation of an

allegation of misbehaviour or incapacity under this Division.

The report is given to the Speaker of the House of Representatives

and the President of the Senate for presentation to the Parliament.

A Commission may give a separate report (which is not tabled) in

relation to sensitive matters.

48 Report

Giving report to parliamentary presiding officers for presentation

to the Parliament

(1) As soon as practicable after a Commission finishes its

investigation, the Commission must give a report to the

parliamentary presiding officers for presentation to the Parliament.

(2) If the Commission finishes its report after the dissolution of the

House of Representatives and before the next sitting of the House,

the Commission must give the report to the parliamentary

presiding officers as soon as practicable after the next sitting day of

the House.

Content of report

(3) The report must:

(a) describe the Commission's investigation; and

(b) include a full transcript of the Commission's hearings

(subject to subsections (4) and (5)); and

evidence that would let the Houses of the Parliament

conclude that the alleged misbehaviour or incapacity

investigated by the Commission is proved; and

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Section 48

34 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No.

, 2012

(d) include a record of all evidence before the Commission as it

thinks may be relevant for the Houses of the Parliament to

consider in determining whether the alleged misbehaviour or

incapacity is proved; and

(e) if the members are not unanimous--state the opinion of each

member of the Commission of whether or not there is

evidence that would let the Houses of the Parliament

conclude that the alleged misbehaviour or incapacity

investigated by the Commission is proved.

(4) If a Commission holds all or part of a hearing in private, the

Commission must determine whether any or all evidence given

during that private hearing is included under paragraph (3)(b) in

the full transcript of the Commission's hearings.

(5) If any such evidence is personal information (within the meaning

of the Privacy Act 1988), then the Commission may include that

evidence in the full transcript only with the consent of the person to

whom the information relates.

Separate report on sensitive matters

(6) If the Commission believes that if any of its findings or

conclusions, or any of the evidence before the Commission, were

to be laid before the Houses of the Parliament:

(a) a person who has been or may be charged with an offence

against an Australian law may not receive a fair trial for the

offence; or

(b) an investigation of a breach, or possible breach, of an

Australian law may be prejudiced; or

information in relation to the enforcement or administration

of an Australian law may be disclosed; or

(d) a person may be enabled to ascertain the existence or identity

of a confidential source of information in relation to the

enforcement or administration of an Australian law; or

(e) there may be prejudice to the safety of a person; or

(f) those findings or conclusions, or that evidence, would be

scandalous or highly personal;

Investigations of Commissions Part 3

Report Division 3

Section 48

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

the Commission may include those findings or conclusions, or that

evidence, in a separate report, and give that report to the

parliamentary presiding officers with a statement of the

Commission's belief.

(7) If the parliamentary presiding officers are given a separate report

under subsection (6), they:

(a) must not cause a copy of it to be laid before the Senate or the

House of Representatives; and

(b) must make it available for inspection by Senators, members

of the House of Representatives, and the person in relation to

whom the allegation was investigated by the Commission;

and

(8) Except where it is necessary to do so for the purposes of giving

effect to this Act, a person is not to be required:

(a) to produce, or disclose, a separate report given under

subsection (6) to a court or tribunal; or

(b) to produce, or disclose, a separate report given under

subsection (6) under any other Australian law.

Part 3 Investigations of Commissions

Division 4 Offences relating to investigations

Section 49

36 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No.

, 2012

Division 4--Offences relating to investigations

49 Guide to this Division

This Division contains offences in relation to investigations

conducted by a Commission.

The offences include:

(a)

failing to comply with a requirement of a

Commission (such as a requirement to appear,

produce a document or other thing, or be sworn or

affirm); and

(b)

offences in relation to private hearings (such as

being present at such a hearing or publishing

material from such a hearing); and

(c)

giving false or misleading evidence to a hearing;

and

(d)

interfering with witnesses, or otherwise obstructing

a Commission.

50 Unauthorised presence at hearing

A person commits an offence if:

(a) the person is present at a hearing of a Commission; and

(b) the person's presence contravenes subsection 24(7).

Penalty: Imprisonment for 6 months.

51 Failure of witness to appear

(1) A person commits an offence if:

(a) the person has been required under a notice given under

paragraph 25(1)(a) to appear at a hearing of a Commission;

and

Investigations of Commissions Part 3

Offences relating to investigations Division 4

Section 52

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

(b)

the

person:

(i) fails to appear as required by the notice; or

(ii) fails to attend from day to day.

Penalty: Imprisonment for 6 months.

(2) Subsection (1) does not apply if the person has a reasonable

excuse.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (2) (see subsection 13.3(3) of the Criminal Code).

(3) Subparagraph (1)(b)(ii) does not apply if a member of the

Commission has excused or released the person from further

attendance.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (3) (see subsection 13.3(3) of the Criminal Code).

52 Failure of witness to produce document or other thing

Failure to produce when appearing at a hearing of a Commission

(1) A person commits an offence if:

(a) the person is required to produce a document or other thing at

a hearing of a Commission under a notice given under

paragraph 25(1)(a) or (b); and

(b) the person appears at the hearing; and

Penalty: Imprisonment for 6 months.

Failure to produce as required by paragraph 25(1)(c) notice

(2) A person given a notice under paragraph 25(1)(c) must not refuse

or fail to produce a document or other thing that the person is

required by the notice to produce.

Penalty: Imprisonment for 6 months.

Exception to subsections (1) and (2)

(3) Subsection (1) or (2) does not apply if:

Part 3 Investigations of Commissions

Division 4 Offences relating to investigations

Section 53

38 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No.

, 2012

(a) the person has a reasonable excuse; or

(b) the document or other thing was not relevant to the matter the

Commission was investigating.

Note 1:

A defendant bears an evidential burden in relation to the matter in

subsection (3) (see subsection 13.3(3) of the Criminal Code).

Note 2:

For self-incrimination, see section 54.

53 Refusal to be sworn or to give evidence

(1) A person who is required to appear, or is appearing, at a hearing of

a Commission as a witness must not:

(a) refuse to be sworn or to make an affirmation; or

(b) refuse to answer a question that is asked at the hearing and is

relevant to the Commission's investigation.

Penalty: Imprisonment for 6 months.

Exemption of Commonwealth judicial officer etc.

(2) Subsection (1) does not apply to a person who is:

(a) a Commonwealth judicial officer; or

(b) a former Commonwealth judicial officer.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (2) (see subsection 13.3(3) of the Criminal Code).

54 Self-incrimination

(1) A person is not excused from:

(a) producing a document or other thing as required by a notice

given under section 25; or

(b) answering a question at a hearing of the Commission that is

relevant to a Commission's investigation;

on the ground that the production of the document or thing, or the

answering of the question, might tend to incriminate the person or

expose the person to a penalty.

(2) However, in the case of an individual, none of the following:

(a) the document or thing produced or the answer given;

(b) producing the document or thing or answering the question;

Investigations of Commissions Part 3

Offences relating to investigations Division 4

Section 55

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

indirect consequence of producing the document or thing or

answering the question;

is admissible in evidence against the individual in civil or criminal

proceedings in any court or tribunal of the Commonwealth, a State

or a Territory other than proceedings for:

(d) an offence against this Act or Division 3 of Part III of the

Crimes Act 1914; or

(e) an offence against any of the following provisions, being an

offence that relates to this Act or Division 3 of Part III of the

Crimes Act 1914:

(i) section 6 of the Crimes Act 1914 (accessory after the

fact);

(ii) section 11.1 (attempt), 11.4 (incitement) or 11.5

(conspiracy) of the Criminal Code;

(iii) section 137.1 or 137.2 of the Criminal Code (false or

misleading information or documents);

(iv) section 149.1 of the Criminal Code (obstruction of

Commonwealth public officials).

55 Acts or omissions on different days constitute separate offences

If:

(a) a person's act or omission on a day constitutes an offence

against section 50, 51, 52 or 53; and

(b) the person does or omits to do the same thing in relation to a

hearing the Commission holds on another day;

each of the acts or omissions constitutes a separate offence.

56 False or misleading evidence

A person must not, at a hearing of a Commission, intentionally

give evidence that is to the knowledge of the person false or

misleading with respect to any matter, being a matter that is

material to the Commission's investigation.

Penalty: Imprisonment for 2 years.

Part 3 Investigations of Commissions

Division 4 Offences relating to investigations

Section 57

40 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No.

, 2012

57 Injury to witness

A person commits an offence if the person:

(a) uses violence against; or

(b) inflicts punishment on; or

another person for or on account of the person having produced a

document or other thing under a notice given under section 25.

Penalty: Imprisonment for 12 months.

58 Preventing witnesses from producing document or other thing

A person (the first person) commits an offence if:

(a) another person is required by notice given under section 25 to

produce a document or other thing; and

(b) the first person prevents the other person from producing the

document or thing as required.

Penalty: Imprisonment for 12 months.

59 Bribery of witness

(1) A person (the first person) commits an offence if:

(a) the first person:

(i) asks for, receives or obtains any property, or benefit, of

any kind for himself or herself or another person; or

(ii) agrees to receive or to obtain any property, or benefit, of

any kind for himself or herself or another person; and

(b) the first person does so upon an agreement or understanding

that any person required to produce a document or other

thing under a notice given under section 25 will not produce

the document or thing.

Penalty: Imprisonment for 5 years.

(2) A person commits an offence if the person attempts by any means

to induce a person required to produce a document or other thing

Investigations of Commissions Part 3

Offences relating to investigations Division 4

Section 60

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

under a notice given under section 25 not to produce the document

or thing.

Penalty: Imprisonment for 5 years.

60 Fraud on witness

(1) A person (the first person) commits an offence if:

(a) the first person practises fraud or deceit on another person;

and

(b) the other person is required to produce a document or other

thing under a notice given under section 25; and

that the other person will not produce the document or thing

as required.

Penalty: Imprisonment for 2 years.

(2) A person (the first person) commits an offence if:

(a) the first person makes or exhibits any statement,

representation, token, or writing to another person; and

(b) the other person is required to produce a document or other

thing under a notice given under section 25; and

representation, token, or writing with the intention that the

other person will not produce the document or thing as

required.

Penalty: Imprisonment for 2 years.

61 Obstruction of a Commission

A person commits an offence if the person:

(a) insults or disturbs a Commission; or

(b) interrupts the hearings of a Commission; or

(d) by writing or speech uses words false and defamatory of a

Commission; or

Part 3 Investigations of Commissions

Division 4 Offences relating to investigations

Section 62

42 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No.

, 2012

(e) engages in conduct that is intended, or likely, to amount to an

improper interference with:

(i) the free exercise by a Commission of its authority or

functions; or

(ii) the free performance by a member of the member's

duties as a member.

Penalty: Imprisonment for 6 months.

62 Failure to provide facilities and assistance

A person commits an offence if:

(a) the person is subject to section 33 (occupier to provide

constable with facilities and assistance); and

(b) the person fails to comply with that section.

Penalty: 30 penalty units.

63 Unauthorised publication of material

A person commits an offence if:

(a) the person publishes material; and

(b) the publication contravenes a direction given under

subsection 44(1) (Commission directing that information not

be published); and

in relation to the material.

Penalty: Imprisonment for 6 months.

Investigations of Commissions Part 3

Protections Division 5

Section 64

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

Division 5--Protections

64 Guide to this Division

This Division deals with the protections that are provided to those

who are connected with a Commission (such as members of the

Commission, and witnesses and lawyers who appear at a hearing of

a Commission).

The Division also deals with the treatment of hearings and

evidence of a Commission under the Parliamentary Privileges Act

1987.

65 Protection of members, witnesses and lawyers

(1) A member has, in the performance of the functions or the exercise

of the powers of a member, the same protection and immunity that

a member of a House of the Parliament has in relation to the

performance of the functions or the exercise of the powers of a

committee of a House of the Parliament.

(2) Subject to this Act, a person who:

(a) is required to:

(i) appear at a hearing of a Commission; or

(ii) produce a document or other thing;

under a notice given under section 25; or

(b) is appearing as a witness at a hearing of a Commission;

has the same protection and immunity as a witness before a

committee of a House of the Parliament.

(3) Counsel assisting a Commission, or a lawyer representing a person

at a hearing of a Commission, has the same protection and

immunity as a witness before a committee of a House of the

Parliament.

Part 3 Investigations of Commissions

Division 5 Protections

Section 66

44 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No.

, 2012

66 Protection in relation to contraventions of prohibitions

Protection for answering question

(1) A person who:

(a) is required to appear, or is appearing, at a hearing of a

Commission; and

(b) answers a question at the hearing;

is not liable for a contravention of a prohibition by or under

another Australian law on the answer.

Protection for producing document or other thing

(2) A person who is required to produce, or who produces, a document

or other thing to a member of the staff of, or to a member of, a

Commission is not liable for a contravention of a prohibition by or

under another Australian law on the production of the document or

thing.

67 Hearings and evidence of a Commission

(1) For the purposes of section 10, and subsections 16(3), (4) and (6),

of the Parliamentary Privileges Act 1987:

(a) proceedings of a Commission, and the formulation, making

or publication of a report, and the report itself, are taken to be

proceedings in Parliament; and

(b) evidence before a Commission is taken to be evidence before

a committee of a House of the Parliament.

(2) Subsection 10(2) of the Parliamentary Privileges Act 1987 applies

as if the reference to section 13 of that Act were a reference to

section 63 of this Act.

(3) This section is not intended to limit or otherwise affect the

operation of section 16 of the Parliamentary Privileges Act 1987.

Terms and conditions of membership Part 4

Section 68

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

Part 4--Terms and conditions of membership

68 Guide to this Part

This Part sets out the terms and conditions of a member of a

Commission, such as his or her remuneration, and rules relating to

resigning, terminating or ceasing an appointment.

In addition to the terms and conditions provided for specifically by

this Part, the parliamentary presiding officers may jointly

determine other terms and conditions.

69 Terms and conditions generally

A member holds office on the terms and conditions (if any) in

relation to matters not covered by this Act that are jointly

determined in writing by the parliamentary presiding officers.

70 Other employment

(1) A member must not engage in any paid employment that conflicts

or may conflict with the proper performance of his or her duties.

(2) Subsection (1) does not apply to a member who is a judge of the

Supreme Court of a State or Territory.

71 Remuneration

(1) A member is to be paid the remuneration that is determined by the

Remuneration Tribunal. If no determination of that remuneration

by the Tribunal is in operation, the member is to be paid the

remuneration that is prescribed by the regulations.

(2) A member is to be paid the allowances that are prescribed by the

regulations.

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

Part 4 Terms and conditions of membership

Section 72

46 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No.

, 2012

(4) A member who is a judge of the Supreme Court of a State or

Territory is not, while receiving salary or annual allowance as such

a judge, entitled to remuneration in accordance with this Act.

72 Resignation

(1) A member may resign his or her appointment by giving a

parliamentary presiding officer a written resignation for

presentation to the Parliament.

(2) The resignation takes effect on the day it is received by the

parliamentary presiding officer or, if a later day is specified in the

resignation, on that later day.

(3) If a parliamentary presiding officer is given a written resignation,

the parliamentary presiding officer must, as soon as practicable,

give a copy of it to the other parliamentary presiding officer.

73 Termination, or cessation, of appointment

Members who are not Supreme Court judges

(1) A member's appointment may be terminated on any of the

following grounds:

(a) the member's misbehaviour or physical or mental incapacity

(within the ordinary meaning of those words);

(b)

the

member:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the

benefit of his or her creditors;

may conflict with the proper performance of his or her duties

(see section 70);

(d) the member fails, without reasonable excuse, to comply with

section 74 (disclosure of interests by members).

Terms and conditions of membership Part 4

Section 74

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

(2) A member's appointment is terminated by force of this subsection

if:

(a) each House of the Parliament passes, in the same session, a

resolution on a ground referred to in subsection (1); and

(b) the ground on which the member's appointment is to be

terminated is the same in each resolution.

Supreme Court judges

(3) Subsections (1) and (2) do not apply to a member who is a judge of

the Supreme Court of a State or Territory.

(4) If a member who is a judge of the Supreme Court of a State or

Territory ceases to be such a judge, he or she ceases to be a

member at the same time.

Member who becomes Commonwealth judicial officer

(5) If a member becomes a Commonwealth judicial officer, he or she

ceases to be a member at the same time.

74 Disclosure of interests by members

If a member of a Commission has or acquires any interest,

pecuniary or otherwise, that could conflict with the proper

performance of his or her duties in relation to the Commission's

investigation and report:

(a) he or she must disclose the interest to all the persons and

bodies recognised by the Commission as parties to the

investigation; and

(b) except with the written consent of all those persons and

bodies, he or she must not take part in the investigation or

preparation of the report.

Part 5 Administrative provisions

Section 75

48 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No.

, 2012

Part 5--Administrative provisions

75 Guide to this Part

This Part contains administrative provisions relating to

Commissions, such as:

(a)

the staff, consultants and counsel who are to assist

a Commission; and

(b)

when information, evidence or documents obtained

by a Commission in the course of investigating an

allegation of misbehaviour or incapacity may be

disclosed; and

(c)

rules relating to the records of a Commission.

76 Staff of a Commission

(1) The staff of a Commission must be persons:

(a) who are made available to the Commission by a

parliamentary presiding officer; or

(b) whose services are made available to the Commission under

an arrangement made under subsection (2).

APS employees to be made available to a Commission

(2) The parliamentary presiding officers may jointly arrange with an

Agency Head (as defined in the Public Service Act 1999) for the

services of APS employees in the Agency Head's Agency (as

defined in that Act) to be made available to a Commission.

(3) While a person is performing services for a Commission under an

arrangement under subsection (2):

(a) he or she is taken to be:

(i) engaged under the Parliamentary Service Act 1999; and

Administrative provisions Part 5

Section 77

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

(ii) on leave without pay from his or her employment under

the Public Service Act 1999; and

(b) he or she must perform his or her functions and duties in

accordance with the directions of the presiding member

(subject to subsection (4)).

(4) A direction of a presiding member under paragraph (3)(b) is

subject to any direction of the Secretary of the Department that the

Commission is taken to be part of under section 79 in relation to:

(a) the performance of the Secretary's functions; and

(b) the exercise of the Secretary's powers;

under the Financial Management and Accountability Act 1997 and

the Parliamentary Service Act 1999.

77 Consultants

A Commission may, on behalf of the Commonwealth, engage

consultants to assist in the performance of the Commission's

functions.

78 Counsel assisting a Commission

On behalf of the Commonwealth, a Commission may appoint a

lawyer to assist the Commission as counsel, either generally or in

relation to a particular matter or matters.

79 Commission to be part of Department of House of

Representatives or Senate

For the purposes of the Financial Management and Accountability

Act 1997 and the Parliamentary Service Act 1999, a Commission is

taken to be part of the Department of the House of Representatives,

or the Department of the Senate, established by the Parliamentary

Service Act 1999, as agreed by the parliamentary presiding

officers.

Part 5 Administrative provisions

Section 80

50 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No.

, 2012

80 Commission must prepare and keep statements of reasons about

search warrants

(1) A Commission must prepare and keep a written statement of

reasons in relation to each search warrant issued by the

Commission or a member of the Commission.

(2) The statement of reasons must set out the following:

(a) the reasons the Commission or member suspects that each

document or other thing to which the search warrant relates is

connected with the matter the Commission is investigating;

(b) the reasons the Commission or member suspects that each

document or other thing may be on or in particular premises;

notice were given requiring the production of each document

or other thing, it may be concealed, lost, mutilated or

destroyed.

81 Commission may give information, evidence, documents etc.

(1) This section applies (subject to subsection (6)) to information,

evidence, a document or other thing obtained by a Commission in

the course of investigating an allegation.

Giving to law enforcement authorities

(2) If the information relates or may relate to a contravention of a law

described in subsection (3), or the evidence is of such a

contravention, the Commission may give the information or

evidence to one or more of the following:

(a) the Attorney-General of the Commonwealth, a State, the

Australian Capital Territory or the Northern Territory;

(b) the Director of Public Prosecutions of the Commonwealth, a

State or a Territory;

Act 1982;

(d) the Commissioner of the Australian Federal Police or of the

police force of a State or of the Northern Territory;

Administrative provisions Part 5

Section 82

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 No. , 2012

(e) the authority or person responsible for the administration or

enforcement of that law.

(3) Subsection (2) applies in relation to a contravention of a law if:

(a) the law is a law of the Commonwealth, a State or a Territory;

and

(b) the contravention is punishable by a criminal, civil or

administrative penalty.

Giving to Royal Commissions

(4) The Commission may give:

(a) a Royal Commission within the meaning of the Royal

Commissions Act 1902; or

(b) a Royal Commission of a State or a Territory;

the information, evidence, document or other thing, or the content

of the document or a description of the thing, if the Commission

believes it relates or may relate to a matter the Royal Commission

is required or permitted to inquire into.

Giving to the Australian Crime Commission

(5) The Commission may give the Chief Executive Officer of the

Australian Crime Commission the information, evidence,

document or other thing, or the content of the document or a

description of the thing, if the Commission believes it is or may be

relevant to the performance of the functions of the Australian

Crime Commission.

No limit on the Parliamentary Privileges Act 1987

(6) This section is not intended to limit or otherwise affect the

operation of section 16 of the Parliamentary Privileges Act 1987.

82 Records of a Commission

(1) A Commission must give a House of the Parliament possession of

the Commission's records that it no longer needs.

Commonwealth of Australia Bills

JUDICIAL MISBEHAVIOUR AND INCAPACITY (PARLIAMENTARY COMMISSIONS) BILL 2012